Justices Consider When To Declare Districts 'Unitary'

Washington--School districts that were once racially segregated by
law should remain bound by court desegregation orders until every wrong
caused by the separation of races is cured, a lawyer for black
schoolchildren in Oklahoma City told the U.S. Supreme Court last
week.

Responding to a hypothetical question posed by Associate Justice
Sandra Day O'Connor, Julius L. Chambers of the NAACP Legal Defense and
Educational Fund conceded that if his argument won the day, orders in
such cases could conceivably remain in force for 100 years or more if
the effects of segregation persisted that long.

Desegregation orders "must remain until all of the vestiges are
eliminated," Mr. Chambers said. "We have no idea how long [they have]
to remain in effect."

A majority of the Justices, however, appeared not to be swayed by
Mr. Chambers's position during arguments in Board of Education of
Oklahoma City v. Dowell (Case No. 89-1080), a case that could resolve
some of the last remaining key issues in school-desegregation
law--namely, what steps a formerly segregated district must take in
order to be declared "unitary," or fully integrated; and what
desegregation obligations, if any, such a district has after it has
attained that status.

In contrast to Mr. Chambers's argument, lawyers for the Oklahoma
City school board and the Bush Administration maintained that districts
should be freed from court supervision after they have made a "good
faith" effort over a sustained period to comply with desegregation
orders and have eliminated the vestiges of segregation "to the greatest
extent practical."

"Unitariness must mean that the constitutional violation has been
eliminated and control must be returned to the local school board," he
said.

"Counting by race is a very serious act for the state to do," added
Solicitor General Kenneth W. Starr, who presented the Administration's
arguments before the Court. "It should not do that once a
[desegregation] plan has been in effect for an extended period of
time."

Neighborhood Schools

The Dowell case, the first desegregation suit to be heard by the
Justices in nearly a decade, centers on the Oklahoma City school
board's decision in 1985--eight years after a federal district judge
had declared the district unitary--to end mandatory busing of students
in grades 1 through 4 in favor of a system of neighborhood schools.

As a result of the change, black enrollment in 11 elementary schools
that had been integrated under the busing plan rose to above 90
percent.

U.S. District Judge Luther Bohannon upheld the neighborhood-schools
plan in 1987, saying that it was adopted without an intent to
discriminate and that the re-establishment of nearly all-black schools
was the result of segregation in housing over which the school board
had no control.

A federal appeals court struck down the district's new
student-assignment plan in 1989. Even after a district has been
declared unitary, the court said, it cannot take action that would
result in resegregation absent "a clear showing" by district officials
"of grievous wrong evoked by new and unforeseen conditions."

Residential Segregation

During last week's arguments, several Justices devoted much of their
inquiry to the implications of residential segregation for the
schools.

In a query directed to Mr. Starr, Justice O'Connor asked, "How does
a district eliminate the last vestiges [of school segregation] when
residential segregation remains a reality and at some point in the past
segregated schools may have contributed to it? To me that seems to be
the crux of the problem."

Segregation in housing "cannot in a meaningful sense be considered a
vestige of the dual [school] system if there has been good-faith
compliance with a plan," the Solicitor General replied. "The school
board has no realistic control over where people decide to live."

"I believe so," Mr. Starr said. "Once a plan has been in effect for
a substantial period of time, the board has done all it realistically
can."

Earlier in the hearing, Justice Kennedy asked Mr. Day, the school
board's lawyer, if he believed the busing plan was a failure.

"If you're asking whether neighborhoods became integrated, no, the
plan did not work," Mr. Day replied.

"But isn't residential segregation in part the result of de jure
segregation' the Justice followed up.

"No," the lawyer answered. "The de jure system created segregated
schools, not segregated neighborhoods."

'What's the Purpose?'

Justice Kennedy posed a similar set of questions to Mr. Chambers,
the lawyer for the black schoolchildren.

"You say that this new plan reinstates matters to where they were"
when the case was filed in 1961, the Justice said. "Are you saying that
busing has not remedied the situation? If the neighborhood pattern is
the same now, what's the purpose?"

"The board cannot create or perpetuate a segregated system," Mr.
Chambers responded. "Until the vestiges are removed, the injunction
must remain in force."

"If 100 years from now there are still patterns of residential
segregation, does this order have to remain in effect?" Justice
O'Connor asked.

"It must remain until all of the vestiges are eliminated," the
lawyer replied. "Here we have 40 percent of the district's black
elementary students in segregated schools."

"If in a quarter-century [busing] didn't make a difference" in
residential segregation, "there's no reason to believe that in another
quarter-century it will make a difference," Associate Justice Antonin
Scalia said.

"So you say this is not a transitional remedy, but a permanent
remedy," Justice Scalia shot back. "That isn't how busing was
originally envisioned."

Marshall's Queries

One of the most heated exchanges occurred when Associate Justice
Thurgood Marshall, the Court's only black member and the lawyer who won
the touchstone desegregation case Brown v. Board of Education,
questioned Mr. Starr.

"In Oklahoma City, you say the dismantling of the dual system was
done, but poor Afro-American children are still in the same schools,"
Justice Marshall pointed out.

"The dismantling occurred due to good-faith compliance with the
plan," the Solicitor General replied.

"But the schools are still segregated," Justice Marshall
countered.you don't believe that segregation is unconstitutional."

"With all due respect, that is not our position," Mr. Starr
said.

Justice Marshall followed a similar line of questioning with the
school board's lawyer.

"Is the school board injured if it is required to operate its
schools according to the Constitution?" he asked. "They are required to
follow the Constitution, and they object to doing that."

"They do comply with the Constitution," Mr. Day replied.

"If you take the order away, what assurance is there that they will
follow the Constitution?" the Justice asked.

"They cannot take any action that would discriminate on the basis of
race," Mr. Day responded.

"So you would have to file a new suit?" Justice Marshall asked.

"Yes sir," Mr. Day replied.

Only eight Justices were on the bench last week when the case was
argued. If those Justices find they are equally divided, they could
schedule the case for reargument later this term to enable the Court's
newest member, David H. Souter, to cast the deciding vote.

The Court is expected to announce its decision in the case by next
June.

Other Action

In other action last week, the High Court declined to review
decisions in the following school-related cases:

Shenandoah Baptist Church v. Dole (No. 90-16). Lower federal courts
had rejected the church's arguments that the First Amendment's religion
clauses prevented the U.S. Labor Department from forcing the church's
school to comply with the federal Fair Labor Standards Act and Equal
Pay Act.

Mississippi Employment Security Commission v. McGlothin (No.
89-1726). The state supreme court awarded unemployment benefits to a
public-school teacher who was fired for wearing a head wrap in defiance
of her school's dress code. The dismissal violated the teacher's First
Amendment rights to religious and cultural expression, the state court
ruled.

D.T. v. Independent School District No. 16 (No. 89-1834). The case
stems from the June 1984 sexual molestation of three 5th-grade boys by
their school's basketball coach the night after an off-campus
fundraising event. A federal appeals court ruled that school officials
did not violate the boys' substantive right to due process under the
14th Amendment because the molestations occurred during summer vacation
and because the parents had consented to the trip.

McCain v. Houston Independent School District (No. 89-1790). Federal
district and appeals courts had ruled that a high-school student who
allegedly drank beer on school grounds was not entitled to a hearing
before she was suspended.

Patterson v. Federal Bureau of Investigation (No. 89-1731). A
federal appeals court last year ruled that the agency was entitled to
keep its files on a former elementary-school student secret for reasons
of "national security." The fbi began an investigation of the boy in
1983 after he sent letters to representatives of more than 100 nations
as part of a school project.

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